Toohey v Tax Agents’ Board of Victoria (No 2) [2008] FCA 1796

FEDERAL COURT OF AUSTRALIA

Toohey v Tax Agents' Board of Victoria (No 2) [2008] FCA 1796

ADMINISTRATIVE LAW – appeal from decision of Administrative Appeals Tribunal – where applicant's application for re-registration as a registered tax agent refused under s 251JC of the Income Tax Assessment Act 1936 (Cth) – where Tribunal failed to correctly apply test under s 251JC – where Tribunal failed to correctly evaluate evidence when considering whether tax agent was a fit and proper person

Income Tax Assessment Act 1936 (Cth) s 251BC(1), s 251C(1)(a)(i) Administrative Appeals Tribunal Act 1975 (Cth) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 followed Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited Toohey v Tax Agents' Board of Victoria (2007) 67 ATR 522 cited Politis v Federal Commissioner of Taxation (1988) 20 ATR 108 cited Shi v Migration Agents Registration Authority (2008) 248 ALR 390 cited Statham v Federal Commissioner of Taxation (1988) 20 ATR 228 distinguished Vetter v Lake Macquarie City Council (2001) 202 CLR 439 cited PETER TOOHEY v TAX AGENTS' BOARD OF VICTORIA

VID 277 of 2008

MIDDLETON J

27 NOVEMBER 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 277 of 2008

ON APPEAL FROM THE TAXATION APPEALS DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT S.A. FORGIE

BETWEEN: PETER TOOHEY

Appellant

AND: TAX AGENTS' BOARD OF VICTORIA

Respondent

JUDGE: MIDDLETON J DATE OF ORDER: 27 NOVEMBER 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The decision of the Tribunal be set aside. 3. The matter be remitted to a differently constituted Tribunal or, if the parties so agree, to the Tribunal constituted by Deputy President Forgie to determine according to law the application of the appellant for re-registration as a Registered Tax Agent under the Income Tax Assessment Act 1936 (Cth). 4. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.